8.  The applicant NGO campaigns against the use of animals in commerce, science and leisure, seeking to achieve changes in law and public policy and to influence public and parliamentary opinion to that end.
9.  In 2005 the applicant began a campaign called ‘My Mate’s a Primate’ which was directed against the keeping and exhibition of primates and their use in television advertising. As part of the campaign, the applicant wished to broadcast a 20-second television advertisement. The proposed advertisement opened with an image of an animal’s cage in which a girl in chains gradually emerged from the shadows. The screen then went blank and three messages were relayed in sequence: “A chimp has the mental age of a four year old”; “Although we share 98% of our genetic make-up they are still caged and abused to entertain us”; and “To find out more, and how you can help us to stop it, please order your £10 educational information pack”. In the final shot, a chimpanzee was in the same position as that of the girl.
10.  The proposed advertisement was submitted to the Broadcast Advertising Clearance Centre (“the BACC”) for a review of its compliance with relevant laws and codes. On 5 April 2005 the BACC declined to clear the advertisement. The objectives of the applicant were “wholly or mainly of a political nature” so that section 321(2) of the Communications Act 2003 (“the 2003 Act”) prohibited the broadcasting of the advertisement. This decision was confirmed on 6 May 2005. The advertisement could and can be viewed on the internet.
11.  On 19 October 2005 the applicant issued proceedings seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“the HRA”) arguing that the prohibition on political advertising on television and radio imposed by the 2003 Act was incompatible with Article 10 of the Convention. The only contested issue was whether the prohibition could be considered “necessary in a democratic society”.
12.  An affidavit from the Director General of the Department of Culture, Media and Sport (“DCMS”) dated 16 December 2005 was submitted on behalf of the State. It detailed how impartiality was a fundamental feature of the regulatory regime applicable to broadcasting and why it was considered that political advertising was incompatible with impartiality. It explained that a less restrictive prohibition was impracticable by describing the review process which began in 1999 (see paragraphs 37-55 below) noting that the relevant bodies consulted had supported the prohibition and it considered this answered the applicant’s arguments. Controls on broadcast media were justified given the unique nature of the medium and since there were other media available to the applicant. The affidavit referred to other States with similar provisions (Ireland, Denmark, Sweden and Norway), concluding that, in countries which had allowed paid political advertising, there remained “significant practical problems” in running such a system particularly in being able to guarantee equal access to all parties where the political landscape was characterised by multiple parties, where parties/broadcasters circumvented rules on time/funding limits on paid political advertising and where there was confusion over what constituted “political” advertising.
13.  On 4 December 2006 the High Court (Auld LJ and Ousley J) dismissed the applicant’s claim. Both judges considered the prohibition to have been widely defined. Ousley J observed that it covered “a continuum of political activity and intensity from party political activity at election time to the pursuit by non-political bodies at any time of particular interests of public concern”. While political expression was a highly prized form of expression, both found the interference justified.
14.  Both judges rejected reliance on VgT Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001‑VI) which they found turned on its facts. Auld LJ found the 2003 Act to have had a number of ameliorating features not present in the scheme at issue in VgT, including a relaxation of controls on the timing and content of political and election broadcasts. They relied on the criticisms of the VgT judgment in R (ProLife Alliance) v BBC ([2003] UKHL 23), Ousley J finding that it was not possible to discern the basis of the VgT judgment. Both judges doubted the relevance of Murphy v. Ireland (no. 44179/98, ECHR 2003‑IX (extracts)): it did not concern political advertising and they were not convinced by the observation therein that the margin of appreciation for restrictions on political advertising might be narrower than those on religious advertising.
15.  Both judges underlined the caution to be exercised by the courts as regards Parliament’s policy and legislative choices. Auld LJ reiterated that:
“ ... in such matters of social and political judgment, the executive and legislative authorities - particularly the latter - of a Contracting State may normally be expected to have a better or surer grasp of its democratic needs and their practicalities than the Strasbourg Court or its own courts. Therein lies the notion of deference which, under one name or another, still stands as a caution to our courts against interfering too readily with the Government’s policies or Parliament’s legislative schemes in implementation of them. Such caution is an agent for broadening rather than narrowing the margin of appreciation/ambit of discretionary judgement of a Contracting State in this context, just as it may be in the context of other important and sensitive issues peculiar to a Contracting State’s traditions, to which its authorities – like those of Ireland in Murphy – are peculiarly alive and well qualified to assess.
Here, the United Kingdom Parliament has chosen to introduce a prohibition on political advertising confined to the broadcast media because of its perceived greater power than that of other media and, consequently, greater potential for distortion by wealthy interests of the democratic process. It may be that it could have gone about it in a different way, but is the court to be the judge of that, faced as it is with wide and highly authoritative support for the Parliamentary scheme?”
Auld LJ was to later conclude that Parliament had acted within the ambit of the discretionary judgment available to it.
Ousley J stated that the High Court was not reliant solely on the evidence before it since the “experience, expertise and judgment of Parliament expressed in the legislation can demonstrate the necessary justification”. As to the justification for the prohibition, he stated:
“There are competing interests at stake here which a legislature is entitled and obliged to balance, taking account of the way in which it can anticipate that groups and parties would use the greater access to the broadcast media which the Claimant seeks for itself and others. ...
In this regard, it is clear that Parliament has expressed a considered view, having grappled with the human rights implications of s321. I give great weight to its view thus expressed as evidencing the need for this restriction. This is not an executive act, not secondary legislation but primary legislation which was passed without member dissent by Parliament. It was aware of the opposition on human rights grounds of Professor Barendt, and of the reservations, based on VGT, expressed by the Joint Committee on Human Rights and the Electoral Commission.
I also give Parliament’s considered view great weight because of the subject matter. The impact of broadcasting on the topics, framework and intensity of political debate is one which few would be better placed to assess than those who deal on a daily basis with constituents and interest groups, whether to enlist, respond to or resist their influence. They would be well placed to know what manner of groups there were or might be who would take advantage of degrees of alteration to the present ban. It is not contestable that Parliament, through its MPs and politically active peers, is far better placed to reach a judgment on those matters than judges. This is not an area which more readily falls into the sphere in which judges are more experienced and expert. This is the more true of non-national judges.
I see these factors as giving substantial evidential weight to the view of a democratically elected body in deciding what restriction was shown to be necessary in the public interest. In substance, another way of putting that is to say that the subject matter warrants a considerable discretionary area of judgment being accorded to Parliament.
No doubt Parliament could have devised a form of words which would present a solution of sorts to any problem as to where a line was drawn as between types [of] advertiser or advertisement. However, the complexities and inevitable arbitrariness of any solution, such as it might be called, are proper matters for Parliament to consider in deciding that a complete ban on broadcasting advertisements is the only practicable and fair answer.”
Whether Parliament’s enactment of the prohibition was evidence for its necessity in an area of Parliament’s expertise or as a judgment in an area where a wider margin of discretion should be accorded to it, Ousley J considered that Parliament’s decision should be respected by the courts.
16.  Having noted the lack of a relevant European consensus, Auld LJ remarked that the experts’ reports submitted had been of little assistance, had been produced by the State as a matter of disclosure only and had not been relied upon by the State. Ousley J noted that the High Court had been provided with some, but not comprehensive, material about how some other Council of Europe and commonwealth States had dealt with the issue. It was not of any great use save to demonstrate that there was a general consensus that electoral periods justified advertising prohibitions and that there was no clear consensus as to whether the present prohibition was necessary outside of an electoral period. Various states had decided what restrictions were necessary given their particular political sensitivities and broadcasting systems. The absence of consensus might have reflected those differing conditions which were properly part of a legislature’s judgment as to whether or not this degree of prohibition was necessary in its democratic society.
17.  Both Auld LJ and Ousley J emphasised the rationale for the prohibition: to preserve the integrity of the democratic process by ensuring that the broadcast media were not distorted by wealthy interests in favour of a certain political agenda. Ousley J characterised the prohibition as a restriction aimed at supporting the democratic process rather than one with a specific content objection. Both judges considered it legitimate to single out the broadcast media as its impact was potentially more powerful: Ousley J finding that it was not a matter of serious debate that the broadcast media was more pervasive and potent than any other media form. As to the debate about whether television was more expensive than other media, Ousley J considered it sufficient to accept that broadcasted advertisements had an advantage of which advertisers and broadcasters were aware and for which the former would pay large sums of money far beyond the reach of regular groups who would wish to participate in the public debate.
18.  Finally, both judges rejected the argument that the prohibition was disproportionate as it applied outside electoral periods and to groups such as the applicant who were not associated with party politics or electoral campaigns. Auld LJ emphasised that it would not be “a principled or logical distinction” to limit the prohibition to electoral periods. Both judges considered that political advertising in the broadcast media outside such periods was likely to have an equally obvious influence on the democratic process. In this respect, Ousley J noted that the broadcast media were ever-present, that contentious democratic issues could arise at any time and that purchased influence could affect the promotion of legislation, the decision to hold an election or its ultimate outcome. Both judges also considered that it was impracticable, arbitrary and potentially unfair to attempt to draw a line between party political matters and other matters of public importance: the distortion of the political debate could take many forms and could embrace a vast range of matters of public interest and certain issues would be difficult to categorise. There was also a risk that such a distinction might allow political parties to “contract out” their political advertising to “splinter or supporter groups” which would be free from restriction.
19.  As a result, the High Court refused a declaration of incompatibility.
20.  On 12 March 2008 the House of Lords (Lord Bingham, Lord Scott, Baroness Hale, Lord Carswell and Lord Neuberger) unanimously dismissed the applicant’s appeal.
21.  Lord Bingham gave the lead judgment. He recognised that, since the prohibition interfered with political expression, the standard of justification imposed on the State was “high” and the margin of appreciation was correspondingly small. The objective of the prohibition was as follows:
“28. The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated.”
22.  The objective was not achieved if:
“...well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.”
Lord Bingham did not think that the full strength of this argument had been deployed in the above-cited VgT judgment.
23.  He considered that a blanket prohibition was necessary to avoid the risk of advertisements by organisations with objectionable goals and he observed that this option had been discounted in VgT but recognised in the above-cited Murphy judgment. That the prohibition was confined to the broadcast media only was, as Ousley J had found, explained by the particular pervasiveness and potency of television and radio, a factor recognised by this Court in Jersild v. Denmark (23 September 1994, § 31, Series A no. 298) and in Murphy although he noted that the VgT judgment appeared to discount the point.
24.  As to whether a less restrictive prohibition (regulated by time, frequency, expenditure or by the nature and quality of advertisements) would avoid the mischief sought to be avoided, Lord Bingham considered it unnecessary to explore this option in detail because, inter alia, any less restrictive system could be circumvented by the formation of small groups pursuing very similar political objects; it would be difficult to apply objectively and coherently; and it would be even more difficult for broadcasters to fulfil their duty of impartiality. While the JCHR had requested a compromise solution, the Government had judged that no fair and workable compromise solution could be found which would address the problem, “a judgment which Parliament accepted. I see no reason to challenge that judgment”. Parliament’s judgment was to be given “great weight” for three reasons. In the first place, it was reasonable to expect that democratically-elected politicians would be “peculiarly sensitive” to the measures necessary to safeguard the integrity of democracy. Secondly, while Parliament considered that the prohibition might “possibly although improbably” infringe Article 10, Parliament had resolved to proceed because of the importance it attached to the prohibition and its judgment which should not be “lightly overridden”. Thirdly, legislation could not be framed to address particular cases but had to lay down general rules and Parliament would decide where the line would be. While that inevitably meant that hard cases would fall on the wrong side of the line, “that should not be held to invalidate the rule if, judged in the round, it is beneficial.”
25.  The fact that other means of communication were available to the applicant was a “factor of some weight” and this was to be contrasted with Bowman v United Kingdom (19 February 1998, Reports 1998‑I) where the impugned provision was found to amount to be a total barrier to the applicant’s communication of her views.
26.  Finally, Lord Bingham observed that there was no clear consensus among member States on how to legislate for the broadcasting of political advertisements. This Court had widened the margin of appreciation in such instances and suggested that it might be that each State was best fitted to judge the checks and balances necessary to safeguard, consistently with Article 10, the integrity of its own democracy. He dismissed the appeal, agreeing with Ousley J and, in the main, with Auld LJ. He did not accept Lord Scott’s view that the domestic courts could differ from this Court in interpreting Convention rights since the former should, in the absence of special circumstances, follow any clear and constant case-law of this Court.
27.  Lord Scott agreed with Lord Bingham, adding two comments.
In the first place, the prohibition could give rise to further Article 10 claims given its “remarkable” width: it could withhold from the applicant the ability to place advertisements for broadcasting with no political content or with an entirely neutral content and prevent the applicant from ‘countering’ permitted commercial advertising which offended their principles. As a result, there might be respects in which sections 319 and 321 were incompatible with Article 10. However, the power to make a declaration of incompatibility under section 4 of the HRA was a discretionary one. As a general rule it ought not to be exercised unless the circumstances of the case showed that the legislative provision in question had “affected a Convention right of the applicant ... in a manner that is incompatible with that right” and hypothetical examples of ways in which the legislative provision might be incompatible with a Convention right did not suffice. The conclusion was that the prohibition was not incompatible with the applicant’s Article 10 rights.
Secondly, it was not possible to assume from the VgT judgment that the Court would disagree with the House of Lords in the present case. The Court in Murphy did not distinguish or qualify its reasoning in VgT and this Court’s judgments focused closely on the particular facts of each case. There was no more than the possibility of a divergence between the finding of the House of Lords and of this Court.
28.  Baroness Hale began her judgment by pointing out that there had been “an elephant in the room” when the case was heard and it was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States. She underlined the enormous amounts spent, and which have to be raised, for elections in the United States. There was no limit in the United States to the amount that pressure groups could spend on getting their message across in the most powerful and pervasive media available.
29.  She went on to describe the rationale of the prohibition as ensuring that Government and its policies were not decided by the highest spenders:
“Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. ... We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.
So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.”
30.  Baroness Hale held, in full agreement with the reasons given by Lord Bingham, that the prohibition as it operated in the case was not incompatible with the applicant’s Article 10 rights. On the contrary, it was:
“51. ... a balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work...”
31.  She doubted the application of the Court’s judgment in the VgT case since, like all of this Court’s judgments, it was fact specific:
“52.  ... Similar though the organisations were, the advertisements were rather different: “eat less meat” is a different message from “help us to stop their suffering”. Important arguments which were given less weight in VgT were accepted in Murphy. If anything, the need to strike a fair balance between the competing interests is stronger in the political than in the religious context. Important though political speech is, the political rights of others are equally important in a democracy. The issue is whether the ban, as it applies to these facts, was proportionate to the legitimate aim of protecting the democratic rights of others. As Lord Bingham has demonstrated, Government and Parliament have recently examined with some care whether a more limited ban could be made to work and have concluded that it could not. The solution chosen has all-party support. Parliamentarians of all political persuasions take the view that the ban is necessary in this democratic society. Any court would be slow indeed to take a different view on a question such as this. There may be room for argument at the very margins of the rule, for example, in banning any advertisement of any kind by a political body, or in banning any advertisement by anyone of matters of public controversy. But that is not this case.”
32.  Finally, Baroness Hale agreed with Lord Bingham (disagreeing with Lord Scott) that the correct interpretation of the incorporated Convention rights lay ultimately with this Court. The domestic courts should adopt a “cautious approach” where they must not “leap ahead” of the Court’s interpretations but “keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less”.
33.  Both Lord Carswell and Lord Neuberger dismissed the appeal for the reasons given by Lord Bingham.